Before Newman, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
John M. Nordhoff seeks review of the decision of the Merit Systems Protection Board (Board), Docket No. CH-0752-94-0113-B-2, affirming the administrative Judge's (AJ) dismissal of his appeal for lack of jurisdiction. We affirm the finding that the Board lacks jurisdiction to hear this appeal based on the findings of the AJ that Mr. Nordhoff's retirement was not the product of coercion or misinformation.
This appeal involves an allegedly involuntary disability retirement. Mr. Nordhoff was an electronics engineer at the Naval Weapons Support Center in Crane, Indiana. He applied for disability retirement based on a psychiatric condition in September 1991 and his retirement became effective on October 23, 1991. Mr. Nordhoff alleged that his retirement was involuntary because the agency could have accommodated his impairment by reassigning him to any of a number of positions, but that the agency instead ordered him to report to a job it knew he was incapable of performing. Mr. Nordhoff further alleged that the agency threatened him with disciplinary action when he did not report to his new job assignment and told him that his only other option was disability retirement.
In his first decision, the AJ found that Mr. Nordhoff's retirement was not the product of coercion and dismissed his claim for lack of jurisdiction. The Board found there was a question regarding whether Mr. Nordhoff's decision to apply for disability retirement resulted from misinformation regarding his right to reasonable accommodation and remanded Nordhoff's case to the AJ for further factual findings. On remand, the AJ found that any failure to provide information was immaterial because there were no positions to which the appellant could have been reassigned. On review, the Board again remanded and required the AJ to make additional factual findings to support his Conclusion. On remand, the AJ reaffirmed his finding that there were no positions to which the appellant could have been reassigned.
On review, the Board reopened the case on its own motion and affirmed the initial decision as modified. The Board's modified opinion began by explaining that the Board's jurisdiction over an appeal is controlled by a person's status on the effective date of the action being appealed. The Board further explained that the effective date of Mr. Nordhoff's disability retirement was October 23, 1991. The Board continued by stating that Mr. Nordhoff's retirement could not be considered to be a constructive removal if he was unable to render useful service at that time. Under such circumstances, there would be no true choice between working and not working and therefore Mr. Nordhoff could not have been constructively removed. The Board concluded that, because Mr. Nordhoff had admitted to being completely disabled on October 23, 1991, he could not have rendered service on that date and therefore his retirement was not a constructive removal.
On appeal to this court, Mr. Nordhoff takes issue with the Board's reasoning. His primary argument is that the Board violated 5 U.S.C. § 7701(j) by considering the appealability of his claim based on his retirement disability status. 5 U.S.C. § 7701(j) states:
"In determining the appealability under this section of any case involving a removal from the service (other than the removal of a reemployed annuitant), neither an individual's status under any retirement system established by or under Federal statute nor any election made by such individual under any such system may be taken into account."
Mr. Nordhoff also argues that October 23, 1991 was the incorrect date for assessing the level of his disability. In addition, Mr. Nordhoff appears to reallege claims that his retirement was involuntary.
When reviewing a decision of the Board, we may reverse only if the decision was arbitrary, capricious, an abuse of discretion, or unlawful; procedurally deficient; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).
A decision to retire is presumed voluntary and therefore an employee who voluntarily retires has no right to appeal to the Board. See Staats v. United States Postal Serv., 99 F.3d 1120, 1123-24 (1996). The Board can assume jurisdiction only if the employee shows that his retirement was involuntary and therefore constituted a constructive removal. Id. In order to overcome the presumption of voluntariness, the employee must show his retirement was the product of misinformation or the retirement was the result of coercion. Id. at 1124.
In this case, the AJ found that Mr. Nordhoff's retirement was neither the product of misinformation nor coercion. There is substantial evidence to support these findings. We affirm the holding that the Board lacks jurisdiction based on these findings. We therefore need not reach Mr. Nordhoff's arguments with regard to ...